In Depth

There is "potential for abuse" when an armed and uniformed police officer is at the scene of a self-help eviction
or repossession of a private party, according to an Indiana Court of Appeals judge.

Judge James Kirsch dissented from his colleagues in Mark Harness Jr. v. Paul Schmitt and Town of Winona, No.
43A05-0909-CV-528, in which the majority upheld the finding that police officer Paul Schmitt was immune from tort liability.
Mark Harness alleged Schmitt unlawfully assisted in a false eviction when Schmitt went to the house Harness was renting at
the request of the homeowner to evict Harness.

"While it may not be improper per se for an armed and uniformed police officer to accompany a private party
to the scene of self-help eviction or repossession, such a practice is fraught with the potential for abuse," wrote Judge
Kirsch. "It creates the false impression that the eviction or repossession is being effected pursuant to court authority
although the officer has no way of knowing whether the eviction or repossession is lawful or unlawful."

He believed there were material questions of fact whether Schmitt was assisting in an unlawful eviction and would remand
for trial.

But the majority held Schmitt was acting in the scope of his employment and engaged in law enforcement when he went to Harness'
house. Even though the record doesn't explain why the eviction notice was "false," Schmitt would still be immune
from liability, wrote Judge Melissa May.

He wasn't acting outside the scope of his duties because police officers are often required to keep the peace and enforce
laws. Schmitt was at the house to prevent any breach of peace.

"We decline to hold an officer's presence at a place where a breach of the peace might be anticipated is, as a matter
of law, outside the definition of 'law enforcement,'" she wrote.

Conversations

0 Comments

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or
hateful.

You are legally responsible for what you post and your anonymity is not guaranteed.

Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content
are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.

No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are
relevant to the topic at hand, but please do not link to objectionable material.

We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag
a post simply because you disagree with it.